SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Bowers, 2016 NSSC 191
Date: 20160722
Docket: Hfx No. 448903A
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
Bridgid Mary Bowers and Michael David Moore
Respondent
LIBRARY HEADING
Judge:
The Honourable Justice Peter Rosinski
Heard:
June 15, 2016, in Halifax, Nova Scotia
July 11, 2016
Final Written
Submissions:
Written Decision: July 22, 2016
Subject:
Summary Conviction Appeal – Land-use Bylaw – Statutory
interpretation and continuing offences
Summary:
In 2006, the homeowners built a 750 ft.² building on their
property without approval, yet while knowing 650 ft.² was the
maximum size permitted. In November 2013, HRM received
a complaint, and investigated. Homeowners charged in July
2014 that they did between November 13, 2013 and July 10,
2014 “unlawfully allow an accessory building greater than
650 ft.² in area, contrary to s. 27A of the Dartmouth Land-use
Bylaw, pursuant to s. 369(1) of the Halifax Regional
Municipality Charter”. At trial, the judge found that the
offence was not a continuing offence, and that the two-year
limitation period in s. 370A ended in 2008. Therefore the
prosecution was precluded and he dismissed the charge. The
Crown appealed.
Issues:
(1) What precisely is the “alleged offence”?
(2) Is the offence herein a continuing one or not?
(3) What is the remedy, if the appeal succeeds?
Result:
(1) The alleged offence here has two components:
(a) The specific offence provisions: pursuant to ss. 7 and
27A of the Dartmouth Land-use Bylaw; and
(b) The general offence (and sentence) provision:
pursuant to s. 369(1) Halifax Regional Municipality
Charter.
(2) Section 7 provides that it is an offence to “erect” or
“maintain” a non-compliant building/s. 27A sets out the
dimensions permitted for compliant buildings. The
offence herein is capable in law of being a continuing
offence, and is arguably so on the facts presented to the
trial judge.
(3) The trial judge erred in ruling that this was not a
continuing offence. It was not appropriate to enter a
conviction because, at trial s. 7 of the Dartmouth Landuse Bylaw was not specifically identified as a component
of the offence, and the trial judge did not rule on the
defence of “officially induced error” as a result of his
finding the limitation period precluded the prosecution.
New trial ordered. No costs given the unsettled
jurisprudence.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.
QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.
SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Bowers, 2016 NSSC 191
Date: 20160722
Docket: Hfx No. 448903A
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
Bridgid Mary Bowers and Michael Moore
Respondent
Judge:
The Honourable Justice Peter Rosinski
Heard:
June 15, 2016, in Halifax, Nova Scotia
Final Written
Submissions:
July 11, 2016
Counsel:
Joshua Judah and Shawnee Gregory for the Appellant
Richard W. Norman for the Respondent
2
By the Court:
Introduction
[1]
In March 2006, Ms. Bowers and Mr. Moore, [“the home owners”] built, and
have continued to use, a 750 ft.² accessory building on their residential property in
Dartmouth. The applicable land-use bylaw and zoning (R-2), restrict the size of an
accessory building to no greater than 650 ft.².
[2]
By information sworn July 16, 2014, the owners were charged that they did
between November 13, 2013 and July 10, 2014 “unlawfully allow an accessory
building greater than 650 ft.² in area, contrary to s. 27A of the Dartmouth Land Use
Bylaw, pursuant to s. 369(1) of the Halifax Regional Municipality Charter”.
[3]
At trial, the owners argued that the offence alleged was complete once the
construction of the accessory building ended in 2006, and therefore a two-year
limitation period arising by virtue of s. 370A of the Halifax Regional Municipality
Charter, SNS 2008, c. 39, [“the HRM Charter”] precluded their conviction.
[4]
The Honourable Provincial Court Judge Daniel A. MacRury dismissed the
charge against the owners. He agreed that the offence was not a continuing one, and
3
therefore their conviction was precluded, the charge having been laid after the expiry
of the two-year limitation period. 1
[5]
The central dispute on appeal involves the proper characterization of the
offence charged as either a continuing offence or not. The important facts are not in
dispute.
At trial an Agreed Statement of Facts was presented, which was
supplemented by the testimony of two witnesses.
Standard of review
[6]
This Crown appeal comes before me through the combined application of the
Summary Proceedings Act, RSNS 1989, c. 450, and our Civil Procedure Rule 63.
[7]
The Crown says that the error in Judge MacRury’s decision arises from his
statutory interpretation of the relevant legislation, and should therefore be reviewed
on a standard of correctness. The defence argues that the questions to be decided by
this Court are whether Judge MacRury properly found that the offence did not
continue in time and whether the limitation period applied. Those being questions
Counsel for the home-owners have argued in their July 11, 2016 brief that the Crown at trial “failed to prove….
any continuing activity occurred at or within the [accessory building] between [the dates charged] November 13,
2013, and July 10, 2014”, and therefore, the dismissal should be upheld. However, I note that Judge MacRury made
no factual findings regarding this issue. Moreover, in his testimony, Mr. Moore confirmed it was built and used as a
recreation room with electricity run from the house – pp. 33(17) and 40(10).
1
4
of fact, the standard of review should be palpable and overriding error, even if such
questions are ones of mixed fact and law.
[8]
In my view, the proper standard of review here regarding the meaning of ss.
369 and 370A of the HRM Charter and the Dartmouth Land-Use Bylaw is one of
correctness - Wilmot v. Ulnooweg Development Group Inc. 2007 NSCA 49 per
Saunders J.A. at paragraph 24 – 25; Housen v. Nikolaisen 2002 SCC 33 at para. 28.
The trial judge was not facing any material dispute of fact. Depending on whether
the offence is a continuing one or not is determinative here. Whether the charged
offence is a continuing offence or not depends heavily on the proper interpretation
of the sections. If the offence is capable of being continuing in nature, and the
wording of the charge supports that conclusion as well, the owners’ building is noncompliant, and they are arguably guilty [unless their “officially induced error”
defence is successful].
[9]
I conclude that: the offence herein has the following constituent parts: s. 7,
27A of the Dartmouth Land-Use Bylaw [the specific offence] and s. 369 of the HRM
Charter [the general offence and penalty]; and as a matter of law, it is capable of
being a continuing offence. On the facts presented, it was a continuing offence.
5
With respect, Judge MacRury erred in concluding otherwise. Let me elaborate as to
why that is so.
The statutory provisions in question
Dartmouth Land-Use Bylaw
7 No person shall erect, alter, repair or maintain any building or locate or carry on
any industry, business, trade, or calling or use any land or building within any zone
without complying with the provisions of this bylaw.
27A No accessory building in any…R-2… Zone shall be greater than 15 feet in
height nor greater than 650 ft.² in area. 2
Halifax Regional Municipality Charter
369(1) - A person who
a) violates a provision of this Act or of an order, regulation or bylaw in force
in accordance with this Act;
b) fails to do anything required by an order, regulation or bylaw in force in
accordance with this Act;
c) permits anything to be done in violation of this Act or of an order,
regulation or bylaw in force in accordance with this Act; or
d) obstructs or hinders any person in the performance of their duties under
this Act or under any order, regulation or bylaw in force in accordance with
this Act, is guilty of an offence.
(2) Unless otherwise provided in a bylaw, a person who commits an offence is
liable, upon summary conviction, to a penalty of not less than $100 and not more
2
Together, these sections constitute the core offence herein. At trial, neither counsel nor the trial judge expressly
referred to their interactions. While the home-buyers argue that they will be prejudiced on appeal if I conclude that
s. 7 and 27A of the Bylaw operate in tandem to create a continuing offence, I do not agree. In conducting my
review of Judge MacRury’s statutory interpretation, the correctness standard of review applies. I must interpret the
legislation correctly in order to assess Judge MacRury’s interpretation. While s. 7 of the Bylaw was not expressly
drawn to his attention, it was in evidence before him and is plainly applicable to the case at bar. In my opinion, he
erred in not considering it. The defendants acknowledge that if a retrial is ordered, as opposed to a conviction being
substituted by this court, their claim of prejudice dissolves.
6
than $10,000 and in default of payment, to imprisonment for a term of not more
than two months.
(3) Every day during which an offence pursuant to subsection (1) continues is a
separate offence.
(4) In addition to a fine imposed for contravening a provision of this Act, a
regulation or a bylaw of the municipality made pursuant to this Act, a judge may
order the person to comply with the provision, order, regulation or bylaw under
which the person was convicted, within the time specified in the order.
s. 370A- Notwithstanding the Summary Proceedings Act, the limitation period for
the prosecution of an offence under a land-use bylaw or a development agreement
is two years from the date of the commission of the alleged offence. [2010 SNS c.
16, HRM Charter amended, and in force May 11, 2010].
[10] Until May 11, 2010, the governing limitation period was six months. That
limitation period derived from the adoption of s. 786(2) Criminal Code through s. 7
of the Summary Proceedings Act RSNS 1989 c. 450. Section 786(2) reads:
No proceedings shall be instituted more than six months after the time when the
subject-matter of the proceedings arose, unless the prosecutor and the defendant so
agree.
Analysis
1.
What is “the date of the commission of the alleged offence” as those
words appear in s. 370A?
[11] The starting point is to precisely identify “the alleged offence”.
a- What is “the alleged offence”?
7
[12] The wording of the charge is that the owners did: “unlawfully allow an
accessory building greater than 650 ft.² in area, contrary to s. 27A of the Dartmouth
Land-Use Bylaw, pursuant to s. 369(1) of the Halifax Regional Municipality
Charter.”
[13] The subsections of s. 369 of the HRM Charter provide multiple forms of
commission of the offence. By including s. 369(3) the legislators clearly intended
that any of the offences included within s. 369 could be capable of continuing
offences. The word “allow” does not appear in s. 369; nor is it defined in the HRM
Charter. What does “allow an accessory building greater than 650 ft. 2 … contrary
to s. 27A…” mean?
[14] In this case, the owners did not require the Crown to further particularize the
subsection they were relying upon. To the extent that the Crown does particularize
the offence charged, such particularization must be proved – R. v. Saunders, [1990]
1 S.C.R. 1020 . However, the Crown need not particularize the means by which the
offence is committed – s. 583(f) Criminal Code. Under which subsection(s) of s.
369 HRM Charter did the parties argue the case at trial?
[15] Although the use of the word in the charge- “allow”- may be considered most
similar to the word “permits” [anything to be done in violation of…[a] land-use
8
bylaw… in s. 369(1)(c)] ,the arguments made at trial are also consistent with the
Crown having relied upon s. 369(1)(a) [“violates…a bylaw”], as a means of the
offence having been committed.
[16] At trial, counsel did not expressly address this matter. They focused their
attention on the significance and interpretation of s. 369(3), which for continuing
offences expressly provides that penalties can be imposed for each consecutive day
that the offence persists. Whether the charged offence here is a continuing offence
or not, will depend on the statutory interpretation of the relevant legislation, in
combination with the wording of the charge, and the factual background.
[17] Notably, in its appeal factum HRM states as follows:
The Respondents committed an offence when they constructed the oversize
accessory building in March 2006. However, this is distinct from the continuing
offence they are currently charged with of allowing the building to remain on their
property. This passive conduct or obligation to comply with the bylaw is ongoing.
It remains after construction.
[18] The commission of the initial offence by the homeowners “when they
constructed the oversize accessory building” could arguably be charged under ss.
369(1)(a) or (c). By constructing the building, they may have violated the land-use
9
bylaw; by permitting others to assist in constructing the building they may also have
violated the land-use bylaw. 3
[19] Section 369 is a general section designed to ensure that persons who act in a
manner disallowed by the HRM Charter, may be subject to prosecution and penalty
if convicted. It provides various means by which an offence can be committed.
[20] While it is arguable to characterize the Crown’s allegation as under s.
369(1)(c) - that the owners “permitted” a violation of the land-use bylaw; the mere
use of the word “allow” in the information does not necessarily preclude HRM’s
reliance upon s. 369(1)(a). This is so in part because I accept that there is a difference
between the word “allow” and “permit”, and bearing in mind as well that “allow” is
HRM’s chosen wording in the information – and thus not subject to “statutory
interpretation”.
[21] In R. v. Bird Construction Group, 2014 NSPC 33, Judge Theodore Tax had
occasion to comment on s. 369(1)(c):
DID THE ACCUSED "PERMIT" THE VIOLATION OF THE BY-LAW?
3
Where multiple means of committing an offence are available in legislation, such as in s. 369(1) HRM Charter, the
Crown may leave the wording of a charge generalized - R. v. Luckett, [1980] 1 SCR 1140. In such circumstances
proof of the offence may be achieved if any one of those means are proved, subject to a defendant being aware of
the case they have to meet – R. v. Taylor (1991), 66 CCC (3d) 262 (NSCA).
10
42
In that factual context, which is similar to the facts before me, Dickson J.
noted in Sault Ste. Marie, supra, at page 1329:
The prohibited act would, in my opinion, be committed by those who
undertake the collection and disposal of garbage, who are in a position to
exercise continued control of the activity and prevent the pollution from
occurring, but fail to do so...The "causing" aspect centers on the defendant's
active understanding of something which it is in a position to control and
which results in pollution. The "permitting" aspect of the offence centers
on the defendant's passive lack of interference or, in other words, its
failure to prevent an occurrence which it ought to have foreseen...
…
46
The term "permits" is not defined in either the HRM Charter or in By-law
S-600 respecting "Solid Waste Resource Collection and Disposal" which was in
effect on May 31st, 2012.
47
The term "permits" has, however, been judicially considered in the case of
R. v. Millar, 1953 CarswellMan 4 (Man.C.A.) at para. 62, where the court held, in
the context of a municipal by-law that:
“Permit" is defined as "not to hinder." Webster defines the word as more
negative than "allow"; that it imports only acquiescence or an abstinence
from prevention… It would seem therefore, that to permit or suffer implies
no affirmative act. It involves no intent. It is mere passivity, indifference,
abstaining from preventative action.
48
The Millar case was cited by the Court in Sault Ste. Marie to assist in
interpreting the word "permit" which is frequently found in public welfare statutes.
It would appear that Dickson J. relied, in part, on the definition provided by the
Court in Millar when he defined "permitting" in Sault Ste. Marie, supra, at page
1329, as the "defendant's passive lack of interference or, in other words, its
failure to prevent an occurrence which it ought to have foreseen".
(my emphasis)
[22] I accept Judge Tax’s interpretation. On its face, and in the context of the other
subsections in s. 369(1), “permit” includes a “defendant’s passive lack of
interference or, in other words, its failure to prevent an occurrence which it ought to
11
have foreseen”. “Allow” suggests a more active connotation and greater level of
intention, as contrasted with “permit”. 4
[23] HRM did not specify in the charge under which subsection s. 369 the offence
was alleged. However, it could have relied upon either s. 369(1)(a) or (c) in its
prosecution of the homeowners when they initially [had] constructed the accessory
building. Use of the words “unlawfully allow an accessory building” could include
the manner of committing the offence pursuant to s. 369(1)(a) or (c).
This
conclusion is significant because HRM is relying on a claimed “continuing” offence.
Identifying the initial offence in March 2006 is therefore important. To be clear, the
offence is breach of s. 369, which arises because of, and incorporates therein ss. 7
and 27A of the Land-Use Bylaw. Next, I will examine whether those offences: are
capable in law of being continuing offences; and capable on the facts herein of being
continuing offences.
(b)
As a matter of statutory interpretation, are the offences herein underlying s.
369(1)(a) or (c) capable of being a continuing offence?
Although I recognize that the distinction in the non-legal meaning between the words “allow” and “permit” may be
over-stated – see e.g. the definition in Etymological Dictionary of Modern English (John Murray, London, England,
1921): “Permission based on approval” versus “Allowing to pass” respectively.
4
12
Statutory interpretation of ss. 369(1)(a) and (c), and 370A
[24] The Interpretation Act, RSNS, 1989 c. 235, as amended, sets out the rules of
construction in ss. 6-21. Most significant for present purposes are the following:
9(1) the law shall be considered as always speaking and, whenever any matter or
thing is expressed in the present tense, it shall be applied to the circumstances as
they arise, so that effect may be given to each enactment, and every part thereof,
according to its spirit, true intent, and meaning.
…
(5) every enactment shall be deemed remedial and interpreted to ensure the
attainment of its objects by considering among other matters
a-the occasion and necessity for the enactment
b-the circumstances existing at the time it was passed
c-the mischief to be remedied
d-the object to be attained
e-the former law, including other enactments upon the same or similar
subjects
f-the consequences of a particular interpretation; and
g-the history of legislation on the subject.
[25] Statutory interpretation was commented on by the Court of Appeal in R. v.
R.V.F., 2011 NSCA 71 per Beveridge J.A., at para. 29 (albeit in the context of the
criminal law (i.e. Youth Criminal Justice Act and Federal Interpretation Act):
A word or phrase should not be examined in isolation, but in context and in accord
with the recognized principles of statutory interpretation. The correct approach to
statutory interpretation is straightforward and oft repeated. Recently in Cape Breton
(Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44,
MacDonald, C.J.N.S. wrote:
13
[36] The Supreme Court of Canada has endorsed the "modern approach" to
statutory interpretation as expounded by Elmer Driedger, Construction of
Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87:
... the words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme
of the Act, the object of the Act, and the intention of Parliament.
See Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 41; Canada (House of
Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v.
Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447.
See also: Coates v. Capital Health District Authority, 2011 NSCA 4, at para. 36;
Nova Scotia (Health) v. Morrison Estate, 2011 NSCA 68, at para. 14 and Waterman
v. Waterman, 2014 NSCA 110 per Beveridge J.A., at paras. 29-32.
[26] In R. v. Hamilton Health Sciences Corp., (2000) 51 OR (3d) 83, and R. v.
Newton – Thompson, 2009 ONCA 449, the Ontario Court of Appeal was required to
consider whether the statutory duty to report occupational health injury occurrences
and suspicion of child abuse, were continuing offences or not.
[27] The court interpreted the legislation in both cases by identifying the abovenoted obligations as central to the legislation, and focused on which interpretation
would best ensure that the objects of the legislation were achieved. Their method of
analysis is appropriate in the case at bar as well.
[28] It is important to recall that the core offence here is contained in s. 7
Dartmouth Land-Use Bylaw. On its face that provision allows for a static and
continuing offence; namely, the erection of, and maintenance of, a non-compliant
building.
14
[29] As required, I will consider:
(i) What did the legislators intend in writing the HRM Charter and Land-use Bylaw
as they did?
(ii) What is the meaning of the text found in s. 369(1)(a), (c) and s. 370A of the
HRM Charter and s. 7 of the Land-use Bylaw?
(iii) What are the consequences of my proposed interpretation?
[30] Section 2 of the HRM Charter states:
The purpose of this Act is to
a) give broad authority to the Council, including broad authority to pass
bylaws, and respect its right to govern a municipality in whatever ways the
council considers appropriate within the jurisdiction given to it;
b) enhance the ability of the council to respond to present and future issues
in the municipality; and
c) recognize that the functions of the municipality are to
i) provide good government,
ii) provide services, facilities and other things that, in the opinion of
the council, are necessary or desirable for all or part of the
municipality, and
iii) develop and maintain safe and viable communities.”
[31] What then is the purpose of s. 369?
[32] Section 235 deals with “Content of land-use bylaw” and is found in Part 8
[Planning and Development]. At its core, the home-owners were charged with
violating a land-use bylaw. These bylaws are intended to allow municipalities to
regulate activities on privately owned land. There are numerous justifications for
15
such bylaws. Bylaws ensure that property owners are aware of the limitations placed
on the use of their properties before, and after, they acquire them; they also ensure
that property owners are aware of the obligations they have in relation to those
properties, many of which are intended to balance the competing interests of
individual property owners as against their surrounding community – whether those
are aesthetic or more tangible, such as safety concerns, or those that have financial
implications.
[33] Section 369 is found in Part 19 [General] of the HRM Charter. It seeks to
make non-compliance an offence in whatever form it takes. But not all offences are
“continuing offences” under s. 369(3) HRM Charter. Similar earlier iterations have
existed: the Municipal Act, RSNS 1954, c. 185, ss. 147-148; and RSNS 1967, c.192
ss. 194-196; Municipal Government Act,1998 SNS, c.18 s. 505.
[34] Section 369 deals with the prosecutorial enforcement of violations of the Act,
regulations or bylaws-its purpose is to support the objectives of HRM’s land-use
bylaws. No more analysis is required.
[35] Notably, the two-year limitation period in s. 370A relates only to “an offence
under a land-use bylaw or a development agreement”. That section only came into
force May 11, 2010. I have no evidence or other means in this appeal to understand
16
why the general six (6) month limitation period was extended thereby to two (2)
years for such circumstances only.
[36] In relation to s. 370A HRM Charter, it is worth recalling as well what
Justice Côte stated, though in the context of civil litigation: see, CIBC v. Green 2015
SCC 60 at paras. 57-58:
This court has generally recognized that limitation periods have three purposes
known as the certainty, evidentiary, and diligence rationales: Novak v. Bond, [1999]
one SCR 808 at paras.64-67, per McLachlin J… Limitation periods and serve “ (1)
to promote accuracy and certainty in the adjudication of claims; (2) to provide
fairness to persons who might be required to defend against claims based on stale
evidence; and (3) to prompt persons who might wish to commence claims to be
diligent in pursuing them in a timely fashion”… Clearly, it is desirable that
litigation be accurate and certain, given that the passage of time dims memories
erodes evidence, and also that the risk of error grows as an adjudicator is further
removed from the cause of action. Furthermore, after a certain time, possible
defendants may be unaware of the need to preserve potentially enlightening or even
exonerating pieces of evidence. Finally, it is appropriate to expect plaintiffs to
assert their claims diligently and be cognizant of their circumstances and of the
extent of their control over them. Modern limitations legislation is therefore based
on a recognition that limitation periods, in order to be effective, need to be final.
This is the other side of the coin, the practical consequence of limitation periods
that can make the application of the limitation statute seem harsh…”.
[37] In the quasi-criminal context, such as in the case at bar, ambiguity regarding
legislated limitation periods should be construed as against the legislator. Citizens
should not face the uncertainty of prosecution at some distant point in the future,
without any compelling countervailing interest at play. I do not find the wording of
17
s. 370A to be ambiguous. Whereas in fact, the circumstances arising in individual
cases may create uncertainty as to whether an offence is “continuing” or not, the
legislation itself is not ambiguous.
(c) Is this an instance of a continuing offence?
[38] A major incentive for drafting a continuing offence was concisely stated in
Regulatory and Corporate Liability: From due diligence to risk management [Todd
Archibald, Kenneth Jull, and Kent Roach] Toronto: Canada Law Book 2013 at p. 337:
Limitation periods are a vexing problem for prosecution of regulatory offences.
Many regulatory offences do not have a “victim” per se who will complain to
authorities, and as a result such offences will be prosecuted only upon discovery by
an agent in question. If the default limitation period is six months, this may present
a very short window within which to discover the offence.
[39] For municipalities outside of HRM, an identical section in the Municipal
Government Act, SNS 1998 c.18, as amended, applies. Section 505 thereof is almost
identical to s. 369 of the HRM Charter.
[40] I have found little helpful jurisprudence regarding when is an offence a
“continuing offence”, either under s. 369(3) HRM Charter or s. 505(3) Municipal
Government Act.
18
[41] In R. v. Rockwell, 2009 NSPC 23, the Honourable Judge Michael Shearer
stated:
63
It is the conclusion of this Court that the charge contrary to Section 505 [1]
of the Municipal Government Act before this court alleging a breach of Section 35
[3] of the Halifax Peninsula Land-Use Bylaw by the defendant between July 25,
2007 and January 25, 2008 is a single continuing offence. As drafted, it meets the
requirements of the Summary Proceedings Act of Nova Scotia and the Criminal
Code Section 789.
[42] In R. v. Lewandowski, 2010 NSPC 37, Judge Jamie Campbell (as he then was)
stated:
9 [s.505(3) MGA] is clearly intended to be a disincentive to those who would
otherwise flout a municipal bylaw because it may be less expensive to pay a fine,
even a maximum $10,000 fine, than to comply. It also may have the effect of raising
the stakes for anyone who disagrees with the interpretation of a situation upon being
told that they are in breach. When each day is an offence the cost- benefit analysis
changes considerably.
[43] In the case at bar, before they built, the owners were aware that the maximum
allowable size of an accessory building on their property was 650 ft2. With that
knowledge they completed the 750 ft 2 building in March 2006. Prior to the point
of its completion, they may be said, to have permitted its construction by others, or
that they violated the by-law while knowing that the building was not compliant with
the Dartmouth Land-Use Bylaw [i.e. erecting a non-compliant building]. But are
they thereafter still in breach of s. 369(1)(a) or (c)? I conclude that they are.
19
[44] The wording of ss. 7 and 27A of the Land-Use Bylaw [which initially could
have been considered as under s. 369(1)(a) or (c)] create a continuing offence.
[45] The erection of the non-compliant building in 2006, and mere presence of the
building thereafter on the property dictate a preliminary finding that they have
continued, to “violate” the land-use bylaw. The bylaw makes it an offence to
“maintain” a non-compliantly erected building. I find the meaning of the word
“maintain” to be unambiguous in this context. 5
[46] The jurisprudence indicates an important distinction between being served
with an order to comply coupled with a refusal or failure to comply [e.g. York
(Regional Municipality) v. Martin Grove Properties Ltd., 2011 ONCA 711] and the
doing of a specific act [whether continuing or not] that does not comply with
legislation [e.g. R. v. Rutherford, (1990) 38 OAC 41]. The home-owners have not
been charged with a refusal or failure to comply with the Notice to Comply sent to
them February 4, 2014. They are charged with having built and maintained a noncompliant building.
Given that the prohibition in s. 7 of the Bylaw makes it an offence for persons “to erect, alter, repair or maintain
any [non-complaint] building”, to give “maintain” meaning, it must refer to the common understanding of
“maintain” which involves [literally ‘to hold by the hand’]; “to have responsibility for, and to do acts that prevent a
decline, lapse or cessation from existing state or condition” – Blacks Law Dictionary, Revised Fourth Edition (West
Publishing Co., St. Paul, Minnesota, USA, 1968)
5
20
[47] The notion of continuing offence in the context of s. 369 was discussed by the
Honourable Judge Michael B. Shearer in R. v. Rockwell 2009 NSPC 23. There the
defendant pled guilty that she did between July 25, 2007 and January 28, 2008 allow
her land to be used in a way not permitted within an R–2 zone, to wit: building
containing more than four apartments contrary to s. 35(3) of the Halifax Peninsula
Land-use Bylaw, contrary to then s. 505 of the Municipal Government Act.
[48] While Judge Shearer was considering this issue in relation to the sentencing
after a guilty plea, he did refer to the Supreme Court of Canada decision in Bell v.
R., [1983] 2 SCR 471 per McIntyre, J. in the context of the importation of narcotics
into Canada:
A continuing offence is not simply an offence which takes or may take a long time
to commit. It may be described as an offence where the conjunction of the actus
reus and the mens rea, which makes the offence complete, does not, as well,
terminate the offence. The conjunction of the two essential elements for the
commission of the offence continues and the accused remains in what might
be described as a state of criminality while the offence continues. Murder is not
a continuing offence. When the requisite intent to kill is present the crime is
complete when the killing is effected. Conspiracy to commit murder could be a
continuing offence. The actus reus and mens rea are present when the unlawful
agreement is made and continue until the killing occurs or the conspiracy is
abandoned. Whatever the length of time involved, the conspirators remain in the
act of commission of a truly continuing offence. Theft is not a continuing offence.
It is terminated when the wrongful taking has occurred with the requisite intention.
On the other hand, possession of goods knowing them to have been obtained by the
commission of theft is a continuing offence. The offence of kidnapping would not
be a continuing offence, but that of wrongful detention of the victim following the
kidnapping would be.
(my emphasis)
21
[49] In Rutherford, noted above, Grange, J.A. adopted a definition from an English
case, R. v. Industrial Appeals Court; Ex-parte Barelli’s Bakeries Pty. Ltd. [1965] VR
615 (SC) at p.620:
A continuous or continuing offence is a concept well known in the criminal law
and is often used to describe two different kinds of crime. There is the crime which
is constituted by conduct which goes on from day to day and which constitutes a
separate and distinct offence each day the conduct continues. There is, on the other
hand, the kind of conduct, generally of a passive character, which consists in the
failure to perform a duty imposed by law. Such passive conduct may constitute a
crime when first indulged in, but if the obligation is continuous the breach though
constituting one crime only continues day by day to be a crime until the obligation
is performed.
[50] In Hamilton Health Sciences Corp. at paragraphs 16-17, that court went on to
point out:
In Barelli’s Bakeries, the court went on to hold that if the offence is a continuing
one, the right to lay an information is not barred if the breach (the failure to perform
the duty) has continued up to the day the information was laid or if the breach was
cured before the information was laid, as in this case, the time counts from the day
the duty was performed. It is helpful to consider the legislation in issue in that case.
The charge was laid under legislation that provided as follows: ‘Where any
employer employs any person on work for which the lowest prices or rates have
been fixed in a determination, such employer shall be liable to pay and shall pay in
full in money without any deduction whatever to such person the price or rate are
determined’.
The “determination” fixed the time for payment. The Supreme Court of Victoria
held that the statutory obligation to pay was not spent if payment was not made at
the time fixed by the determination. Thus, while only one offence was committed,
that offence continued until the obligation was performed. In my view, the same
result should follow in this case.”
22
[51] However, as the home-owners point out, in Rutherford, Grange, J.A. did not
find it to be a continuing offence where the accused electrical contractor was
convicted of two counts of neglecting to comply with regulations in his installation
of an electrical panel. He specifically relied on the comments of Justice McIntyre
in Bell, supra, to the extent that the actus reus and the mens rea must continue to coexist for the matter to be characterized as a continuing offence. Moreover, he
concluded in that case that the offences there were not of the first or second type
cited from Barelli’s Bakeries.
[52] The Crown relies on R. v. Sadolims Enterprises Ltd. 2013 BCSC 2172. In
that case a second floor addition had been built sometime before 1983. In 2008 a
bylaw inspector determined the building was not in accordance with development
building permits and directed the accused to obtain these permits or remove the noncompliant portion.
After the owners applied for them, the permits were not
approved.
[53] That case is distinguishable in the sense that an order was given to the owner,
and the owner’s failure to comply therewith is the offence, not the original noncompliance.
23
[54] So what is the actus reus and mens rea of each of the s. 369(1)(a) and (c)
means of committing the s. 369 offence here? Once I have identified those
constituent aspects, I will ask myself if those elements continued to co-exist over the
time period from March 2006 to the dates charged here?
[55] The actus reus alleged in the case at bar, requires proof beyond a reasonable
doubt, that a person is “an owner” of a property, as defined by s. 3(av) HRM Charter,
and has erected thereon, and thereafter continuously maintained, an accessory
building greater than 650 ft.² in area; the mens rea flows from having done so (one
can be presumed to have known it was an offence), unless it is demonstrated on a
balance of probabilities that one has taken reasonable steps to avoid the particular
event, or that one reasonably believed in a mistaken set of facts which, if true, would
render the act or omission innocent, if one took all reasonable steps to avoid the
particular event.
[56] If from the time they constructed the building to present, the home-owners
were aware that the building was oversized and in contravention of s. 27A
Dartmouth Land-Use Bylaw, is that not a quintessential continuing offence?
24
[57] The homeowners adopt the decisions from Ontario, which Judge MacRury
relied upon to acquit them: R. v. Rutherford, [1990] 38 OAC 41; R. v. Pickles, [2004]
184 OAC 78; Thunder Bay(City) v. Bodnar, 2000 70 ONCJ 686.
[58] Notably each of those cases is distinguishable.
[59] In Bodnar, the court concluded at para. 28:
Furthermore, again following the Pickles decision, this court concludes that this
offence under the bylaw is not a continuing one; the act of “erecting” a structure is
complete when the structure is completed or work stops.
[60] In Bodnar the court also referred to Rutherford and Pickles at para.26:
Regarding the continuing offence issue, the Court of Appeal in Pickles, citing
another decision of that court [Rutherford] concluded that in both cases there had
been a specific act – in Pickles, the construction of the dock without a permit, and
Rutherford, the faulty installation of the electrical panel. At paragraph 22 of Pickles
the court stated, ‘in both cases, the consequences of the specific act continued in a
sense – the electrical equipment was not repaired and a building permit was never
obtained. However, in Rutherford this Court held that the completion of the specific
act triggered the commencement of the limitation period.
[61] In each of those cases, the legislation defined the offence as a specific act that
triggered the commencement of the limitation period.
25
[62] In Pickles, the offence was based on s. 8(1) of the Ontario Building Code Act
which read in part: “no person shall construct….a building… unless a permit has
been issued therefor by a building official.”
[63] In Rutherford, the electrical contractor was charged with faulty installation of
electrical equipment contrary to s. 93(11)(b) of the Ontario Power Corporation Act.
That subsection read in part: every… individual…(b) refusing or neglecting to
comply with this section, or with any regulation, plan or specification made under
its authority is guilty of an offence and on conviction is liable to a fine of not less
than $25 and not more than $500 for each offence;…”.
[64] Notably in Pickles, at paras. 23-25, the court took comfort in its conclusions,
both in that case and Rutherford, because the Legislature specifically addressed the
subject of continuing offences in neither of the specific sub-sections under which
Mr. Pickles and Rutherford had been charged, however it did so by express
references to continuing offences in neighbouring sections, within which the
offences charged against Mr. Pickles and Rutherford were contained. 6
6
Even if constructing the building could be construed as a specific act, arguably without a properly issued building
permit, the specific act been not completed- see the obiter dicta comments of Charron JA in Shanks v. Aregers,
(1997), 38 CLR (2d) 101.
26
[65] In contrast, here the land-use bylaw offence is not limited to only a specific
act. Section 7 expressly refers to the erection and maintenance of a non-complaint
building as distinct offences. Maintaining a non-compliant building in violation of
ss. 7 and 27A of the Dartmouth Land-Use Bylaw is a continuing offence under s.
369(1)(a) HRM Charter.
[66] This interpretation is more consonant with the objectives of land-use bylaws
generally, and the one in question here. If such offences are not of a continuing
nature, then after six months, or two years, persons who knowingly are noncompliant with the Act, regulations or bylaws, would be able to enjoy non-compliant
uses of their property. Such outcomes are contrary to the fundamental objectives of
the legislation, and overlook the difficulty of the timely discoverability of such
violations. I note that courts have been generous with their use of the Remission of
Penalties Act, RSNS 1989, c. 397, when called upon to impose financial penalties
in such cases. Having said that, I appreciate that the home-owners may also be
ordered to dismantle a non-compliant building – s. 369(4) HRM Charter.
[67] I acknowledge that HRM has alternative courses of action such as an
injunction pursuant to s. 202 of the HRM Charter, but such course of action may not
27
suit many circumstances. It is always open to HRM to modify its legislation to avoid
perceived problems.
Conclusion
[68] In answer to the question of what is “the date of the commission of the alleged
offence” as those words are contained in s. 370A, I find the offence underlying, and
specifically charged here is a continuing offence.
[69] I conclude, with great respect, that Judge MacRury erred in concluding
otherwise.
[70] For situations of continuing offences, limitation periods begin to run when
enforcement authorities discover an offence; while in single-act offence situations
the limitation period begins to run when the offence is completed, regardless of when
the enforcement authorities discover the offence.
[71] Arguably, the limitation period began to run as early as the offence having
been brought to HRM’s attention on November 13, 2013, when the initial citizen’s
complaint was made to HRM. The home-owners were served with a Notice to
Comply with s. 27A of the Dartmouth Land-Use Bylaw on February 4, 2014.
28
Whichever act may be considered to have triggered the beginning of the running of
the two-year limitation period in s. 370A HRM Charter, when the information was
laid against the homeowners on July 16, 2014, the limitation period had not yet
expired, and the prosecution was entitled to proceed.
Order
[72] I allow the appeal herein.
[73] Given that the homeowners maintain that they have a defence of “officially
induced error” in any event, which the trial judge did not rule upon, the proper course
is to remit the matter to the Provincial Court for retrial before a different trial judges. 686(4)(b)(i) Criminal Code.
[74] There will be no costs awarded given the unsettled jurisprudence herein.
Rosinski, J.